Sawicki on Government Health Images & Constitutional Litigation

Public health campaigns have long relied on the use of emotionally-stirring graphic imagery to persuade – early examples include a 1919 poster from the American Red Cross featuring the ghost of tuberculosis being pushed out of a home, and a 1944 U.S. War Department venereal disease warning depicting an attractive woman as “A Bag of Trouble.” Indeed, one could trace the history of American public health using posters from the U.S. Public Health Service alone. While the public display of such images has traditionally been uncontroversial, two recent legal developments, regarding tobacco and ultrasound images, have brought the state’s use of graphic imagery in medical and public health contexts to the forefront of public debate.

As these two cases wind their way through the court system, commentators eagerly await judicial decisions resolving these difficult questions of constitutional law. However, because the formal constitutional arguments grounding challenges to the government’s persuasive use of imagery align imperfectly with what are fundamentally ethical concerns, it is clear that even judicial resolutions are unlikely to take these issues off the table. The legal system is often a flawed mechanism for resolving controversial issues in biomedical ethics, and this is certainly the case here.